Legal Theory Blog

All the theory that fits.

  • Legal Theory Bookworm: “Constitutional Change under Autocracy” by Fruhstorfer

    The Legal Theory Bookworm recommends Constitutional Change under Autocracy by Anna Fruhstorfer. Here is a description:

    With the majority of the global population still living under surprisingly stable autocratic regimes, we can assume that regime stability is the ultimate objective of autocratic leadership. However, this stability is continually challenged, so autocrats deploy various instruments to defend their hegemonic power.

    Constitutional Change under Autocracy examines one such instrument, the strategic use of constitutional amendments to reinforce regime stability. Through a large-N comparative analysis and illustrative case studies of Azerbaijan, Mexico, and the German Democratic Republic (GDR), this book demonstrates that constitutional amendments are far more than technical legal adjustments. Instead, they serve as deliberate tools for consolidating power, managing internal rivalries, and mitigating external threats. By enhancing – or attempting to enhance-regime legitimacy, these amendments can play a pivotal role in stabilizing autocratic regimes.

    Insightful and analytical, this book reflects on the implications of the instrumentalization of law and challenges our expectations about the role of constitutions under autocracy.

  • Download of the Week: “The Origins of Statutory Stare Decisis” by Burset

    The Download of the Week is The Origins of Statutory Stare Decisis by Christian R. Burset. Here is the abstract:

    Federal courts apply stare decisis with extra force to decisions that interpret statutes. Critics contend that this “supercharged” deference to statutory precedents lacks a legitimate pedigree. But that charge rests on conjecture, since scholars have paid little attention to how English courts historically handled such cases. This Article responds with a new history of statutory stare decisis. For much of the seventeenth and eighteenth centuries, it argues, common lawyers endorsed the maxim communis error facit ius—common error makes law. That maxim counseled against overturning a course of decisions merely because they had interpreted a statute erroneously. Indeed, as one leading judge remarked, “A series of precedents against the plain words of an act of Parliament have made a law.” Starting in the 1760s, however, several factors—better legislative drafting, partisan conflict over jurisprudence, and high-profile treason trials—led some lawyers, but not all, to reject communis error when it came to statutes. The result: By the 1790s, English law contained two rival approaches to statutory precedent—a classical paradigm, which effectively allowed a course of precedent to amend a statute; and a revisionist alternative, which held that precedent could clarify but not alter a statute’s meaning. Americans inherited that conflict, which endured well into the nineteenth century. This history offers a new perspective on statutory stare decisis today. It also suggests a further question: If some early Americans thought precedent could reshape legislation, what did that mean for erroneous constitutional precedents?

    Important! Highly recommended! Download it while it’s hot!

  • George on the Feasibility of Legal Transplants and East African Family Law

    Kiwumulo George has posted Legal Transplants and Cultural Embeddedness: Rex v Amkeyo, Mifumi v Uganda, and Pierre Legrand’s Impossibility Thesis on SSRN. Here is the abstract:

    The notion of legal transplants refers to the migration of legal rules, institutions, or doctrines across jurisdictions. This topic has long been debated in comparative law. Alan Watson views legal transplants as efficient and socially easy borrowings. He argues they advance legal development regardless of cultural context.[1] In contrast, Pierre Legrand’s “impossibility thesis” claims true legal transplants are unfeasible. He argues that local meanings, historical norms, and interpretive communities shape law.

    Transplanting only textual rules may create hollow forms lacking real meaning. In his 1997 essay, ‘The Impossibility of ‘Legal Transplants’, Legrand argues that while a palm tree moved from North Africa to England may physically survive, it will not thrive or bear fruit, and its significance will shift. Similarly, a legal rule placed in a new cultural context loses its original meaning and function, ceasing to be the same rule.[2]

    This article explores Legrand’s critique through two significant East African family law cases: the colonial decision in Rex v Amkeyo (1917) from Kenya and the post-independence ruling in Mifumi (U) Ltd & 12 Others v Attorney General & Another [2015] UGSC 13 from Uganda. Both examples highlight tensions between imported legal norms and indigenous customary practices, demonstrating that legal transplants entail both constraints and opportunities for transformation.

    On this basis, I argue for a nuanced perspective that acknowledges the deeply embedded cultural nature of legal norms and the need for careful interpretative adaptation in processes of legal reform. Methodologically, this work adopts a primarily doctrinal approach, complemented by socio-legal analysis, to examine the interaction between legal transplants and cultural contexts. Grounding the discussion in case studies and comparative studies further illustrates how legal meanings evolve as they are applied across different cultural settings.

  • Becher & Alarie on Legal Order and AI Agents

    Samuel Becher (Victoria University of Wellington) & Benjamin Alarie (University of Toronto – Faculty of Law) have posted Legal Order in the Age of AI Agents (University of Toronto Law Journal (forthcoming, 2026)) on SSRN. Here is the abstract:

    As AI tools increasingly shape everyday life, autonomous AI agents are emerging as a new frontier. This Article demonstrates how AI legal agents, empowered to act independently on behalf of human users, could structurally reconfigure legal systems through three transformative pathways. First, AI legal agents promise to democratize legal knowledge by dismantling vertical and horizontal institutional barriers to justice. Second, these agents could reconstitute legal authority through algorithmic constitutionalism, accelerated jurisdictional synthesis, and legal pluralism, enabling novel frameworks of AI-mediated dispute resolution that challenge traditional paradigms of jurisdiction and legitimacy. Third, such agents may shift the temporal focus of legal intervention from post-violation remediation to continuous preventive measures. Harnessing this triple transformation-the democratization, pluralistic reconstitution, and temporal shift-will require design frameworks that balance accountability with efficiency, fairness with personalization, and societal values with algorithmic optimization. Together, these developments gesture toward a legal singularity, a future in which AI legal agents, through their continuous interaction with human judgment and institutional frameworks, render law increasingly self-organizing, adaptive, and intelligible.

    Highly recommended.

     

  • Tang on Second-Order Constitutional Theory

    Aaron Tang (University of California, Davis – School of Law) has posted Second-Order Constitutional Theory (93 U. Chi. L. Rev. __ (forthcoming 2026)) on SSRN. Here is the abstract:

    A sophisticated legal thinker who wishes to work out a fully developed approach to constitutional adjudication must choose two theories, not one. The first choice is familiar. What is the best approach for finding right answers to constitutional disputes? The leading competitors are familiar, too—theories such as originalism, pluralism, moral readings, and common law constitutionalism specify different kinds of arguments and evidence that are relevant to ascertaining “correct” constitutional interpretations.

    It turns out, though, that a sophisticated legal thinker must also make a second theoretical commitment. For unless one takes the implausible view that every single case is an evidentiary wipeout under their preferred first-order theory, something more will sometimes be necessary to decide a case. That something is a second-order theory of constitutional adjudication: a theory that does not purport to make any interpretation more (or less) correct, constitutionally speaking, yet still guides a decisionmaker after their preferred first-order interpretive theory has run out.

    This Article’s thesis is that the debate over second-order constitutional theories is both important and generative. It is important because reliance on second-order theories is inevitable in the hard cases that divide us—and because different second-order approaches will often lead to different outcomes. And it is generative because even though few judges or legal academics are likely to change their first-order commitments, our second-order preferences are nowhere near as sticky. Indeed, the dominant, yet unspoken, second-order theory embraced by today’s Supreme Court—the 51-49 rule, under which each justice votes for the outcome they think is supported by more first-order evidence than any other outcome, no matter how slight the difference—is far from inevitable. Yet it is the 51-49 rule, I will argue, that is as responsible for the acrimony over today’s Court as the first-order clash between originalism and its competitors. That claim, if proven, creates an intriguing possibility: armed with a better second-order theory, judges who disagree vehemently over how to interpret the Constitution might still find their way to consensus in some of the most weighty and difficult cases of the day.

    Important and deep. Highly recommended. Download it while it’s hot!

  • Pojanowski on Natural Law and Legal Interpretation

    Jeffrey A. Pojanowski (Notre Dame Law School) has posted Natural Law and Reading Positive Law: Moments of Moral Judgment in Legal Interpretation (American Journal of Jurisprudence, Volume 71 (forthcoming 2026)) on SSRN. Here is the abstract:

    What role does moral reasoning play in the interpretation of positive law? Natural lawyers all agree that, at some level, moral judgments are central for the sound interpretation of human law. But this consensus obscures disagreement about difficult questions. Trying to give an answer about the place of natural law reasoning in legal interpretation, in fact raises a cluster of several questions or decision points. This paper, as part of a symposium on “Analytical Thomism,” identifies and discusses these moments of morality in legal interpretation, including: the choice of interpretive methodology, adherence to meta-norms about interpretation, presumptions about the content of positive law, resolving ambiguities or conflicts such law’s content, and the decision whether to apply the positive law at all. It also offers a sketch of an argument for a natural law theory of presumptive formal interpretation. Whether or not that particular approach is persuasive, understanding the varying answers to these distinct questions will help us understand the range of, and disagreements among, various non-positivist approaches to legal interpretation.

    Highly recommended.

  • Green on “Rights and Right-Holding” by Kramer

    Michael S. Green (William & Mary Law School) has posted“Liberties and Absences”: A review of Matthew Kramer’s Rights and Right-Holding: A Philosophical Investigation (17 Jurisprudence __ (forthcoming 2026)) on SSRN. Here is the abstract:

    This is a review essay on Matthew Kramer’s Rights and Right-Holding: A Philosophical Investigation (OUP 2024). My main focus is why Kramer believes that the following biconditional obtains, in the sense that the left side is true of all and only the possible worlds in which the right side is true:

    A holds a liberty vis-à-vis B that A φ if and only if it is not the case that A has a duty to B not to φ.

    One possible argument for why the biconditional obtains, offered by Heidi Hurd and Michael Moore concerning moral liberties, is that a liberty to φ simply is the absence of a duty not to φ. Kramer rejects this absence theory, concerning both moral and legal liberties. But if liberties are not absences of duties, what constitutes them? Although Kramer speaks of what constitutes claim-rights (and their correlative duties), he fails to do the same with liberties (and their correlative no-rights). As a result, his arguments against the Hurd/Moore account miss their mark. Indeed, Kramer leaves it unclear whether he holds a version of the absence theory himself. Because he does not describe what constitutes liberties, he fails to explain why the biconditional obtains—in particular, why A’s liberty vis-à-vis B that A φ cannot coexist with A’s duty to B not to φ.

    Highly recommended.

  • Mahmood on AI and Human Identity

    Shahid Mahmood (Superior University) has posted Artificial Intelligence and Human Identity: (Islamic Ethical Challenges) on SSRN. Here is the abstract:

    This article critically examines the ethical challenges posed by the rapid advancement of Artificial Intelligence (AI) to human identity, consciousness, and moral agency from the perspective of Islamic thought. As artificial intelligence increasingly emulates human cognitive and decision-making abilities, it raises profound questions concerning the limits of khilāfah (human vicegerency), taklīf (moral responsibility), and ethical accountability.

    The study situates AI as a transformative technology capable of simulating human cognitive functions while emphasizing the intrinsic limitations of machine intelligence in replicating the human soul (rūḥ), moral intentionality (niʿyah), and ethical discernment. Drawing on classical Islamic sources, including the Qur’ān, Hadith, and the works of scholars such as Al-Ghazālī, Ibn Miskawayh, and Al-Qurṭubī, the article analyzes the foundational principles of Islamic ethics Maṣlaḥah (public welfare), ʿAdl (justice), Amānah (trust), and Niʿyah (intention) and their application to contemporary AI systems. Key ethical concerns addressed include autonomy, accountability, privacy, bias, and the preservation of human dignity within technologically mediated environments. The article further employs the Maqāṣid alSharīʿah framework to evaluate the alignment of AI technologies with the objectives of Islamic law, ensuring the protection of faith, life, intellect, lineage, and property. By integrating classical jurisprudential reasoning with modern AI ethics, the study proposes a normative framework for the responsible development and deployment of AI in Muslim societies, highlighting the necessity of maintaining human-centered moral agency while leveraging AI’s potential to enhance societal welfare. This research contributes to the emerging discourse at the intersection of technology, ethics, and Islamic thought, providing scholars, policymakers, and technologists with a comprehensive framework to navigate the ethical complexities of AI. Also engages both classical and contemporary Islamic ethical paradigms to explore whether AI possesses any capacity for moral reasoning or merely functions as a tool within the scope of human agency. By unpacking these complexities, the paper aims to enrich Islamic philosophical discourse on how technological advancement can coexist with the preservation of human dignity and the realization of divine purpose.

  • Meghwal on Admissibility of AI Generated Forensic Evidence

    Tapesh Meghwal (Central university of Karnataka) has posted Admissibility of AI-Generated Forensic Evidence: Legal Standards, Ethical Challenges, and Comparative Jurisprudential Analysis on SSRN. Here is the abstract:

    The implementation of artificial intelligence (AI) into forensic science marks a profound and irreversible transformation, offering unprecedented gains in efficiency, accuracy, and investigative scope. AI applications now span a wide range of disciplines, from biometric identification and DNA analysis to complex crime scene reconstruction and digital evidence authentication. This technological revolution presents significant legal and ethical challenges to judicial systems globally. This report provides a detailed overview of the legal standards governing the admissibility of scientific evidence, focusing on the foundational It then conducts a deep analysis of the key challenges posed by AI, including the black box problem, insidious algorithmic bias, and the crisis of confidence in digital media authenticity due to generative AI. At Last, the report offers a comparative legal analysis of how different jurisdictions, such as the European Union, the United Kingdom, Canada, and Germany, are addressing these issues through a mix of proactive regulation, evolving common law, and established inquisitorial principles. The report concludes that for AI to serve as a just and reliable tool, its use must be governed by new standards of transparency and accountability, with a continued and central role for human oversight and judgment to protect the fundamental principles of due process and equity.

  • Babcock on Criminal Omission Liability

    Stuart Babcock has posted Cabining Criminal Omission Liability on SSRN. Here is the abstract:

    This article aims to elucidate questions, both legal and philosophical, concerning criminal liability for inaction, formally known as omission liability. In particular, this article aims to show that a person’s omission liability for a victimizing outcome does arise, legally, and should arise, normatively, only as a consequence of that person’s prior commissions, wherein those commissions are causes-in-fact of the victimizing outcome. The first half of this article reviews the status of omission liability in criminal law. It aims to reveal the prevalence of this article’s thesis in criminal law precedents. The second half of this article argues that the approach taken by courts is just and preferable to other standards of omission liability. In doing so, it aims to answer both doctrinal and normative challenges.